Introduction to the concept of Marital Rape
Marital rape is a sexual offence. It is recognized as the most severe form of sexual violence all over the world. However, it is a common tendency to think that an offender of rape is usually a stranger, a malicious person. In rape, the perpetrator can be anyone, a stranger or even a family member. It is hard to think for the people that rape is possible in existence of a marital bond. However, rape could actually take place in the existence of valid marriage, and this form of rape is called “Marital Rape”.
Throughout the history of most societies, it has been acceptable for men to force their wives to have sex against their will. The traditional definition of rape in most countries was “sexual intercourse with a female, not his wife, without her consent.” This provided the husband, with an exemption from prosecution for raping their wives, a license to rape.
The Definition of Rape under The Penal Code, 1860
The Penal Code, 1860 defines Rape as a criminal offence but the area of Marital Rape is still uncovered by this section.
Section 375 of the Penal Code, 1860 of Bangladesh provides that-
A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:
Firstly, against her will.
Secondly, without her consent.
Thirdly, with her consent, when her consent has been obtained by putting her in fear of death, or of hurt.
Fourthly, with her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly, with or without her consent, when she is under fourteen years of age.
Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception: Sexual intercourse by a man with his own wife, the wife not being under thirteen years of age, is not rape.
Problems in the Definition of Rape
1. The ‘exception clause’ makes it legally impossible for a man to rape his wife who is over thirteen years of age. Since wives are generally over thirteen years of age in Bangladesh, it means that the overwhelming majority of married women in Bangladesh will be incapable of seeking justice in law if they are raped by their husbands.
2. This exception is inconsistent with the fifth clause of section 375 of The Penal Code, 1860 which clearly states that- It is immaterial whether the girl gives her consent in physical intercourse when the girl is below 14 years of age. But the exception clause upholds that, Sexual intercourse by a man with his own wife, the wife not being under 13 years of age, is not rape. That means only by the reason of marriage the girl under 13 years of age is able to give her consent of physical intercourse. The exception clause of section 375 is unreasonable in considering the consent in case of rape.
3. Consent and age are the highlighted issues of this section. Exception clause of this section upholds that, there is no rape, where there is sexual intercourse by the husband with his own wife not being under 13 years of age. This provision is beyond The Child Marriage Restrain Act, 1929. The girl of 13 years of age is not legally able to get married under the Child Marriage Restrain Act, 1929.
The Punishment of Rape under The Penal Code, 1860
Section 376 of the Penal Code, 1860 of Bangladesh provides that-
Whoever commits rape shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, unless the woman raped is his own wife and is not under twelve years of age, in which case he shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Problems in the Punishment of Rape
1. Section 376 is inconsistent with section 375 of The Penal Code, 1860 which prescribes the definition of rape. There is inconsistency as to the precise age a wife must be for marital rape to be punishable since the exception clause in section 375 sets it at under thirteen years but Section 376 states it to be under twelve years.
2. Moreover, section 376 of The Penal Code, 1860 provides the less punishment when rape is committed by the husband. Thus the provision of section 375 and 376 differentiate the general rape and marital rape. Hence, the statement of marital rape under The Penal Code, 1860 of Bangladesh is totally inconsistent with The Child Marriage Restrain Act, 1929 as well as various international laws and conventions.
Trial of the offence of Marital Rape under CRPC
The Code of Criminal Procedure, 1898 try to draw the procedure of marital rape. Section 561 of The Code of Criminal Procedure, 1898 provides the special provision with respect to offence of rape by a husband. The commentary of this section is that, only the Chief Metropolitan Magistrate or the Chief Judicial Magistrate take cognizance of the offence and sent the offender for trial for such offence. If the Chief Metropolitan Magistrate or a Chief Judicial Magistrate deems it necessary to direct an investigation by a police-officer, with respect to such an offence as is referred to in sub-section (1), no police-officer of a rank below that of police inspector shall be employed either to make, or to take part in, the investigation.
Although this section give the procedure for marital rape but it is not sufficient to prosecute a person properly. As it is difficult to obtain accurate evidence of marital rape within the family, for this reason this offence should have the special procedure of collecting evidence and trial. Moreover, proceedings to be held in camera should be incorporated for the privacy, reputation and loyalty of the family.
Victims of Marital Rape in Bangladesh
Due to the law and societal practice, women who are raped by their husbands are likely to be raped many times. Marital rape is a serious problem, and millions of women worldwide suffer on a day-to-day basis.
Violation of Human Rights
Marital rape is not only discriminatory in nature, it also violates a wife’s right to life with dignity; a woman does not surrender her basic fundamental rights once she gets married. Today, there are many countries that have either enacted marital rape laws, repealed marital rape exceptions, or have laws that do not distinguish between marital rape and ordinary rape. The criminalization of marital rape in those countries both in Asia and around the world indicates that marital rape is now recognized as a violation of human dignity in many countries. Clearly, a law which goes against the Constitution needs to be abolished.
Does Marital Rape exist in Islam?
If the husband used violence to force his wife to sleep with him, he is legally a sinner and she has the right to go to court and file a complaint against him to get punished. The woman also has the right to refuse to engage in sexual relationship with her husband if he has a contagious disease or use violence which hurts her body during the sexual intercourse.
The Islamic Shari’ah advised that the sexual intercourse between man and wife should be conducted with intimacy and love and made such amicable conduct as a sign of piety. Allah says in the Quran, “Your wives are a place of sowing of seed for you, so come to your place of cultivation however you wish and make an introduction for yourselves. And fear Allah and know that you will meet Him. And give good tidings to the believers.”
Marital rape is non-consensual intercourse within marriage, which falls under the category of ‘harming the wife’ and such acts are construed as prohibited acts under Islamic law.
Islam is the only religion that pays attention to women’s rights categorically and upholds the fundamental right of a wife to be free from ‘harm’. If a husband forces his wife into sexual intercourse, he can only do so by harming her and since this is prohibited in Islam, the act is clearly ‘unlawful’ and therefore an offence.
Unfortunately, many Muslims are under the impression that forced sexual intercourse with wives is religiously allowed. This is clearly wrong.
Necessity to enact laws for Marital Rape
Nowadays, more than 100 countries have recognized marital rape as a punishable criminal offence. However, it is a drawback for us that Bangladesh did not enact any special law. Moreover, there is no any special provision regarding marital rape in our substantive law.
It is high time where wives individual rights are violating and they are suffering silently with their frightful experiences. Now, things should be changed. Marital rape should be recognized as a criminal offence and it should give equal recognition as general rape.
Sex without consent is rape. Regardless of a woman’s marital status with regard to her rapist; if there is no consent, it is rape. And no one deserves to be raped. Sex should be based on respect, equality, consent, caring, and clear communication. Nobody knows more than a woman who has gone through it herself just how traumatic rape within a marriage can be. No woman wants to feel like she is living with a rapist. But due to the lack of awareness, law and their proper application women are repeatedly raped by their husband.
A married woman has the same right to control her own body as does an unmarried woman.
We have advanced in many fields, but still marital rape is not considered an offense in Bangladesh. It is high time for the law-makers to enact laws regarding marital rape and take necessary steps to fight violence against the women. So, the amendment, enactment and enforcement of laws regarding marital rape is crying need of time.